CIVIL LIBERTIES
Chapter 5
O’Connor and Sabato
American Government:
Continuity and Change
CIVIL LIBERTIES
In this chapter we will
cover…
–
The First Constitutional Amendments: The Bill of Rights
–
First Amendment Guarantees: Freedom of Religion
–
First Amendment Guarantees: Freedom of Speech and Press
–
The Second Amendment: The Right to Keep and Bear Arms
–
The Rights of Criminal Defendants
–
The Right to Privacy
CIVIL LIBERTIES
•
Civil liberties are the personal rights and freedoms that the federal
government cannot abridge, either by law, constitution, or judicial
interpretation.
•
These are limitations
on the power of government to restrain or dictate how individuals act.
•
The First
Constitutional Amendments: The Bill of
Rights
•
The Bill of Rights
consists of the first ten amendments to the Constitution and includes
specific guarantees such as free speech, free press, and religion.
•
The proposed Bill of
Rights was sent to the states for ratification and was approved in 1791.
The Incorporation Doctrine
•
The Bill of Rights was
designed to limit the powers of the national government.
•
In 1868, the Fourteenth
Amendment was added to the Constitution and its language suggested that the
protections of the Bill of Rights might also be extended to prevent state
infringement of those rights.
•
The amendment begins:
“No state shall....deprive any person, of life, liberty, or property without
due process of law.“”
•
The Supreme Court did
not interpret the Fourteenth Amendment that way until 1925 in Gitlow v. New
York.
The Incorporation Doctrine
• In
1925, the Court ruled in Gitlow v. New York that states could not
abridge free speech due to the Fourteenth Amendment's Due Process Clause.
• This
was the first step in the development of the incorporation doctrine whereby the
Court extended Bill of Rights protections to restrict state actions.
• Not
all of the Bill of Rights has been incorporated. For example, the Second and
Third Amendments have not been incorporated.
•
First Amendment
Guarantees:
Freedom of Religion
In this section we will look at each of
these clauses of the First Amendment, the controversy and power struggles
surrounding them, and the way the Courts have interpreted and applied them.
An Established Religion
means that the government will create and
support an official state church…often
– tax dollars support that chosen church.
– that church’s laws become the law of the land.
– the nation’s leader usually appoint the leading
clerics.
– often other religions are excluded.
Drafting the First Amendment
•
They asked, “Should we establish
a religion or not?”
•
Thomas Jefferson wrote
that there should be “a wall of separation between church and state.”
Arguments for Religious Freedom
•
From the Holy Roman Empire to the Church of England history
indicates that when church and state are linked, all individual freedoms are in
jeopardy.
Arguments for Religious Freedom
•
Many of the founding
fathers believed that the spiritual purity and sanctity of religion would be
ruined if it mixed with the worldly realm of politics.
If
religion becomes part of the government, in Madison’s words, it results in
“pride and indolence in the clergy; ignorance and servility in the laity; in
both superstition, bigotry and persecution.”
The Establishment Clause
•
The Establishment Clause
of the First Amendment guarantees that the government will not create
and/or support an official state religion.
Separationists vs. Accomodationists
The Supreme Court and the Establishment Clause
Prayer in School
•
In Lee v. Weisman (1992), the Court
continued its unwillingness to allow prayer in public schools by finding the
saying of prayer at a middle school graduation unconstitutional.
Lemon v. Kurtzman
•
In 1971, the Court ruled
that New York state could not use state funds to pay parochial school teachers’
salaries.
•
To be Constitutional the
challenged law must
–
have a secular purpose.
–
neither advance nor
inhibit religion.
–
not foster excessive
government entanglement with religion.
•
In 1980, this Lemon
Test was used to invalidate a Kentucky law that required the
posting of the Ten Commandments in public school classrooms.
The Free Exercise Clause
•
“Congress shall make no
law.....prohibiting the free exercise thereof (religion)” is designed to
prevent the government from interfering with the practice of religion.
•
This freedom is not
absolute.
•
Several religious
practices have been ruled unconstitutional including:
–
snake handling
–
use of illegal drugs
–
polygamy
•
Nonetheless, the Court
has made it clear that the government must remain NEUTRAL toward religion.
“See You at the Pole”
• Student
participation in before - or after - school events, such as “see you at the
pole,” is permissible.
• School
officials, acting in an official capacity, may neither discourage nor encourage
participation in such an event.
•
First Amendment Guarantees: Freedom of Speech
and Press
• In
the United States we each have the right to speak our mind (within some broad
limits).
• In
this section we will discuss
–
The history of speech in the United States
–
Prior Restraint
–
Politically Correct and Hate Speech
–
Symbolic Speech
–
Libel and Slander
– The
Internet
“make no law”
The Courts have frequently wrestled with the question of whether freedom
of expression is an absolute. Does no mean no?
A Balance
•
In their attempt to draw
the line separating permissible from impermissible speech,
judges have had to balance freedom of expression against
competing values like
– public order
– national security
– the right to a fair trial
Attempts to Limit Speech: The
Alien and Sedition Acts (1798)
•
These acts were designed
to silence criticism of the government.
•
They made it a criminal
offense to publish “any false, scandalous writing against the government of the
United States.”
•
A new Congress allowed
the acts to expire before the Supreme Court had a chance to rule on the
constitutionality of the laws.
Speech During the Civil War
•
During the Civil War,
President Lincoln suspended the free press provision of the First Amendment.
•
President Lincoln also
ordered the arrest of editors of two New York newspapers. Congress supported him.
Anti-Governmental Speech: Espionage Act (1917)
•
During World War I anti-German feelings ran high. Anything
German was renamed – sauerkraut became
“liberty cabbage.”
• This
law curtailed speech and press during World War I.
• The
law made it illegal to urge resistance to the draft, and even
prohibited the distribution of antiwar leaflets.
• Nearly
2,000 Americans were convicted under the Espionage Act.
Espionage Act (continued)
•
Schenck v. United
States (1919) the Supreme Court
upheld the conviction of Schenck (a secretary of the Socialist Party) for
interfering with the draft.
•
The bad tendency
test was used by the Court. Engaging in
speech that had a tendency to induce illegal behavior was not
protected by the First Amendment.
Espionage Act (continued)
•
Justice Holmes sought to
allow limits on the First Amendment.
•
Justice Holmes defined
the “Clear and Present Danger” test in the Schenck case.
• “Even the most stringent protection of free speech
would not protect a man falsely shouting fire in a crowded theatre.” Justice Holmes.
Debs v. United States (1919)
• In
Debs the Court upheld the conviction of Eugene V. Debs (a Socialist
candidate for the U.S. Presidency) because his anti-war speeches had the
“tendency” to obstruct recruitment efforts.
• While
serving his 20 year prison sentence he received nearly one million votes in the
1920 presidential election!
– Debs was
later pardoned by President Harding.
Libel and Slander
•
Libel is a written statement that defames the character of
a person.
•
Slander is spoken words that defame the character of a
person.
•
In the United States, it
is often difficult to prove libel or slander, particularly if “public persons”
or “public officials” are involved.
Obscenity and Pornography
• Efforts
to define obscenity have perplexed courts for years. Public standards vary from time to time,
place to place, and person to person.
• Work
that some call “obscene” may be “art” to others. Justice Potter Stewart once
said he couldn't define obscenity, but "I know it when I see it." The
ambiguity of definition still exists and is becoming even more problematic with
the Internet.
• No
nationwide consensus exists that offensive material should be banned.
Obscenity
• The
courts have consistently ruled that states may protect children from obscenity
(Osborne v. Ohio, 1991), while adults often have legal access to
the same material.
• Although
the Supreme Court has ruled that “obscenity is not within the area of
constitutionally protected speech or press” (Roth v. United States,
1957) it has proven difficult to determine just what is obscene.
Miller v. California (1973)
•
Miller concerned bookseller Marvin Miller's conviction under
California obscenity laws for distributing illustrated books of a sexual nature.
•
In Miller, the
Court's decision stated that obscene material is not protected by
the First Amendment.
"Three-Pronged Test" for
Obscenity
In order to meet
the definition of obscene material articulated in Miller, three
conditions must be met:
–
whether the average person, applying contemporary community
standards, would find that the work, taken as a whole, appeals to the prurient (unwholesome interest or desire) interest.
–
whether the work depicts or describes, in a patently offensive
way, sexual conduct specifically defined by the applicable state law.
–
whether the work, taken as a whole, lacks serious literary,
artistic, political, or scientific value.
What Types of Speech are Protected?
Symbolic speech--symbols, signs, and other methods of
expression. The Supreme Court has upheld as constitutional a number of actions
including:
– An example
of protected symbolic speech would be the right of high school students to wear
armbands to protest the Vietnam War (Tinker v. De Moines Independent
Community School District, 1969).
– flying a
communist red flag
– burning the
American flag
Flag Burning
• Burning
the American flag is a form of protected symbolic speech.
• The
Supreme Court upheld that right in a 5-4 decision in Texas v. Johnson
(1989).
•
Prior Restraint – a
government action that prevents material from being published.
•
The Supreme Court has
generally struck down prior restraint of speech and press (Near v. Minnesota, 1931).
•
In NYT v. United
States (1971) the Court ruled that the publication of the
top-secret Pentagon Papers could not be blocked.
What Types of Speech are Protected?
Hate Speech – hate speech is the new frontier. Also classed as Unpopular
Speech.
Campus speech zones, city ordinances, and
the Communications Decency Act are just a few examples.
Politically Correct Speech
•
This controversy grew
out of the movement within colleges to ban offensive speech.
•
Incidents in which
reprimanded students have challenged the colleges’ code of speech have been
challenged successfully by the American Civil Liberties Union.
•
The Second
Amendment:
The Right to Keep and Bear Arms
• The
Second Amendment states that
“A well regulated militia, being necessary to the security of a free
state, the right of the people to keep and bear arms, shall not be infringed.”
• This
amendment has been hotly contested in recent years particularly since the 1999
shootings at Columbine High School.
• The
Court has not incorporated this right, nor have they heard many cases about it.
•
Rights of Criminal
Defendants
Fourth Amendment
•
The Fourth Amendment’s
general purpose
– is to deny the government the authority to
make general searches.
• The
Supreme Court has interpreted the Fourth Amendment to allow the police to
search
– the person
arrested,
– things in
plain view of the accused,
–
and places or things that the person could touch or
reach, or which are otherwise in the arrestee’s “immediate control.”
Fourth Amendment
•
Provides protection
against “unreasonable” searches and seizures
•
Requires search
warrants-probable cause
•
Allows “Stop and Frisk”
warrant-less searches only with reasonable suspicion
•
Testing for drugs and
HIV?
Fifth Amendment
•
The Fifth Amendment
states that “No person shall be …compelled in any criminal case to be a witness
against himself.
•
So criminals cannot be
required to take the stand in a trial.
Sixth Amendment
•
The Sixth Amendment
guarantees a right to counsel.
•
In the past this meant
that a defendant could hire an attorney.
•
Since most criminals are
poor they did not have counsel.
•
In Gideon v.
Wainwright (1963), Gideon, a poor man, was accused of a crime and denied a
lawyer.
•
The Court ruled
unanimously that a lawyer was a necessity in criminal court, not a luxury. The
state must provide a lawyer to poor defendants in felony cases.
Eighth Amendment
•
The Eighth Amendment
prohibits cruel and unusual punishment.
•
It is most often used in
arguing death-penalty cases. Some of
the major death-penalty cases are:
–
Furman v. Georgia (1972) The Court ruled that the death penalty
constituted unconstitutional cruel and unusual punishment when it was imposed
in an arbitrary manner.
–
McKleskey v. Kemp (1987) The Court ruled that the death penalty
– even when it appeared to discriminate against African Americans – did not
violate the constitution.
–
McKleskey v. Zant (1991) The Court made it more difficult for
death row inmates to file repeated appeals.
•
The Right to Privacy
•
The Supreme Court has
also given protection to rights not specifically enumerated.
•
The Court has ruled that
though privacy is not specifically mentioned in the Constitution, the Framers
expected some areas to be off-limits to government interference.
The Right to Privacy - Abortion
•
In Roe v. Wade
(1973) the Supreme Court ruled that a Texas law prohibiting abortion
violated a woman's constitutional right to privacy.
•
Since Roe,
a number of other cases on abortion have been decided. In general they have limited abortion rights
in some way.
•
Webster v.
Reproductive Health Services (1989)
upheld fetal viability tests.
•
Planned Parenthood
of Southeastern Pennsylvania v. Casey (1992) Pennsylvania
was allowed to limit abortions as long as they did not pose 'an undue burden'
on pregnant women.
The Right to Privacy:
Homosexuality
• The
Court has declined to extend privacy rights to protect homosexual
relationships.
• In
1986, the Court upheld a Georgia law against sodomy in a 5-4 decision in the
case of Bowers v. Hardwick.
• However,
in 1996, the Court ruled that a state could not deny rights to homosexuals
simply on the basis of sexual preference.
The Right to Privacy
The Right to Die
• In
1990, the Court heard the case Cruzan by Cruzan v. Director, Missouri
Department of Health (1990).
• In
a 5-4 ruling, the Court rejected a right to privacy in cases of assisted
suicides or euthanasia, but argued that living wills, written when competent,
were constitutional.
• In
1997, the Court ruled that there was no constitutional right to assisted
suicide.